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Recent Developments in Foreign and Domestic Criminal Commercial Bribery Laws Ryan J University of Chicago Legal Forum Volume 2012 | Issue 1 Article 9 Recent Developments in Foreign and Domestic Criminal Commercial Bribery Laws Ryan J. Rohlfsen [email protected] Follow this and additional works at: http://chicagounbound.uchicago.edu/uclf Recommended Citation Rohlfsen, Ryan J. () "Recent Developments in Foreign and Domestic Criminal Commercial Bribery Laws," University of Chicago Legal Forum: Vol. 2012: Iss. 1, Article 9. Available at: http://chicagounbound.uchicago.edu/uclf/vol2012/iss1/9 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Recent Developments in Foreign and Domestic Criminal Commercial Bribery Laws Ryan J. Rohlfsent INTRODUCTION The concept of bribery generally conjures notions of pay- ments made by private citizens to government officials as part of a corrupt effort to obtain a government contract or some sort of unfair advantage. But the involvement of a public actor is not required; rather, bribery may include corrupt payments between purely private parties. This may occur, for example, when a ven- dor makes an improper payment to the purchasing director of a company to buy that vendor's goods instead of another vendor's. Various jurisdictions have enacted laws criminalizing such "commercial" or "private" bribery. While the majority of US states have criminal commercial bribery laws, there is no general federal statute. In recent years, a number of international non- governmental organizations (NGOs) have pressed for countries to implement stringent criminal anti-commercial bribery laws. Major economies, such as the United Kingdom, have subsequent- ly passed broad measures that address commercial bribery. Anti-commercial bribery laws are generally based upon clas- sic agency principles regarding the impropriety of influencing an agent to breach a duty it owes to a principal. The legal formula- tions, however, are not uniform. This Article explores criminal commercial bribery concepts both globally and in the United States. Part I notes key formula- tions of anti-commercial bribery laws in various foreign jurisdic- tions and by NGOs. Part II sets forth the US federal framework t Trial Attorney, Fraud Section, Criminal Division, US Department of Justice, Washington, DC. BA 1996, JD 1999 Drake University. The author previously worked for over a decade in private practice with Skadden, Arps, Slate, Meagher & Flom LLP, based in Chicago, Illinois, and London, UK, focusing primarily on white-collar criminal defense, cross-border legal issues, international internal corporate investigations, and commercial litigation. The views expressed are the views of the author and do not necessarily repre- sent the views of the US Department of Justice, the United States, or any other person or entity. 151 152 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2012 for prosecuting acts of commercial bribery through the Travel Act and highlights various approaches taken by US states.' Part III concludes. I. GLOBAL ANTI-COMMERCIAL BRIBERY FORMULATIONS Laws prohibiting commercial bribery are not new. 2 Commer- cial bribery statutes in various forms have been in force for dec- ades in jurisdictions around the world. Reported cases of en- forcement of those laws, however, have not been prevalent. 3 Countries take different legal approaches to combating private sector bribery.4 Global awareness of, and focus on, corruption have increased steadily over the last twenty years. Much of that increase has come from major international bodies championing global stand- ards on antibribery laws. Additionally, the aggressive enforce- ment in several major jurisdictions (including the United States) of laws prohibiting bribery of public officials in connection with international business transactions has led business and political leaders to focus on compliance with these laws.5 Indeed, until late in the 1990s, bribery in some instances was a tax-deductible expense in many nations. 6 One influential NGO has noted that permissiveness toward private sector bribery may foster a busi- ness climate conducive to bribery of public officials.7 Corruption can lead to several negative consequences.8 It can distort fair competition. It may increase costs ultimately 1 The Appendix provides a survey of state antibribery laws. 2 See Editorial Board, Notes, Bribery in Commercial Relationships, 45 Harv L Rev 1248, 1248-51 (1932). 3 Organisation for Economic Co-operation and Development (OECD) Working Group on Bribery in International Business Transactions, Review of the OECD Instruments on Combating Bribery of Foreign Public Officials in InternationalBusiness TransactionsTen Years after Adoption, 11 (OECD 2008) (hereinafter "OECD Consultation Paper"), online at http://www.oecd.org/dataoecd/18/25/39882963.pdf (visited Sept 10, 2012). 4 See id. 5 See, for example, Peter J. Henning, A Warning as Wall Street Moves Into Emerging Markets, NY Times F12 (Sept 29, 2011). 6 See United Nations General Assembly, A/RES/51/191: United Nations Declara- tion against Corruption and Bribery in International Commercial Transactions, (UN 1996), online at http://www.un.org/documents/ga/res/51/a51rl91.htm (visited Sept 10, 2012). 7 See OECD Consultation Paper at 12 (cited in note 3). 8 See Commission of the European Communities, Communication from the Commis- sion to the Council, the European Parliament and the European Economic and Social Committee on a Comprehensive EU Policy Against Corruption 11 (2003), online at http://eur-lex.europa.eulLexUriServ/LexUriServ.do?uri=COM:2003:0317:FIN:EN:PDF (visited Sept 10, 2012). 151] DEVELOPMENTS IN COMMERCIAL BRIBERY LAWS 153 borne by companies, their shareholders, and consumers. And private bribery can also create public safety risks when products or services are chosen for improper reasons, instead of for merit. Against this backdrop, as detailed further below, many key NGOs have recommended (and a number of countries have im- plemented) laws criminalizing bribery between private citizens in transactions that do not involve government business. Nota- bly, the United Kingdom has recently enacted a stringent new antibribery law that includes private bribery.9 The following is an overview of some key activities in this area.10 A. International Conventions and Positions Regarding Crimi- nal Commercial Bribery 1. UN Convention against Corruption. In 1996, the United Nations (UN) General Assembly issued its Declaration against Corruption and Bribery in International Commercial Transactions (the "UN Declaration")." The UN Declaration called on UN member states to take actions to com- bat bribery in international commercial dealings.12 In 2005, the United Nations Convention against Corruption (the "UN Corruption Convention") entered into force.18 The UN Corruption Convention includes recommendations regarding member states' adoption of laws relating to corrupt activities. 14 This category includes corrupt commercial activities between purely private parties that involve no contact whatsoever with the public sector.' 5 9 See Bribery Act 2010, c 23 s 1 (UK). 10 The intent of this Article is to explore concepts and examples of general criminal commercial bribery formulations. This Article is not comprehensive of all laws that may conceivably prohibit such activity. 11 United Nations General Assembly, United Nations Declarationagainst Corruption (cited in note 6). 12 See id. 13 See United Nations Office on Drugs and Crime, United Nations Convention against Corruption (UN 2004), online at http://www.unodc.org/documents/treaties/UNCAC/ Publications/Convention/08-50026_E.pdf (visited Sept 10, 2012) (containing UN General Assembly resolution 58/4 of October 31, 2003 and Annex). For a chart summarizing the status of the UN Convention against Corruption, see http: /treaties.un.org/pagesNiew Details.aspx?src=IND&mtdsg no=XVIII-14&chapter-18&lang-en (visited Sept 10, 2012). 14 See id at 9-17. 15 See United Nations Office on Drugs and Crime, Legislative Guide for the Imple- mentation of the United Nations Convention against Corruption, 106 (UN 2006), online at http://www.unode.org/documents/treaties/UNCAC/Publications[LegislativeGuide/06-5344 0Ebook.pdf (visited Sept 10, 2012). 154 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2012 The UN Corruption Convention prohibits both "active" and "passive" commercial bribery.16 A bribe is "active" under the UN Corruption Convention when a person makes an affirmative act to provide another some sort of undue advantage to receive a commercial benefit in kind. That undue advantage can be tangi- ble or intangible, pecuniary or nonpecuniary.17 Moreover, the UN Corruption Convention recommends a flexible approach to the giving of the benefit; it recognizes that one could give a benefit directly to the person or indirectly to another for the benefit of that person, and the benefit need not be temporally proximate to the request for the improper act.18 As with bribery of public offi- cials, a person committing active commercial bribery must intend for the conferred benefit to constitute a bribe. Under the UN's formulation, though, criminal liability may attach even when the attempted bribe is ultimately unsuccessful.19 "Passive" commercial bribery is the act of soliciting or ac- cepting a bribe. 20 As with active bribery, the bribe may go direct- ly to the person of influence, or indirectly through
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